Massachusetts v. Oakes

PETITIONER:Massachusetts
RESPONDENT:Oakes
LOCATION:Circuit Court of Orange County, Florida

DOCKET NO.: 87-1651
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: Massachusetts Supreme Judicial Court

CITATION: 491 US 576 (1989)
ARGUED: Jan 17, 1989
DECIDED: Jun 21, 1989

ADVOCATES:
James M. Shannon – on behalf of the Petitioner
Richard J. Vita – on behalf of the Respondent

Facts of the case

Question

Audio Transcription for Oral Argument – January 17, 1989 in Massachusetts v. Oakes

William H. Rehnquist:

We’ll hear argument now in No. 87-1651, Massachusetts v. Douglas Oakes.

General Shannon, you may proceed whenever you’re ready.

James M. Shannon:

Thank You, Mr. Chief Justice, and may it please the Court.

This case comes to the Court on writ of certiorari to the Supreme Judicial Court of Massachusetts.

And it raises the question as to whether the overbreadth of a Massachusetts statute whose purpose is to prevent the sexual exploitation and abuse of children is so real and so substantial as to warrant striking down the whole statute on its face.

The relevant statute, Chapter 272, Section 29A, punishes whoever hires, entices, employs, procures, uses, causes, encourages or knowingly permits a child under the age of 18 to pose or be exhibited in a state of nudity or to participate in sexual conduct for the purpose of any visual representation.

Byron R. White:

Just so I get it straight, you talk about overbreadth.

What’s your position on whether the conduct or the… these… this… what this father did… is it protected or unprotected?

James M. Shannon:

It… it is our position, Your Honor, that although the court below specifically did not react the question as to whether the Respondent’s activity was protected or not… it is position that it was clearly not protected.

Byron R. White:

And it certainly wasn’t under the statute.

I gather.

James M. Shannon:

It–

Byron R. White:

I mean, the statute would certainly forbid it.

James M. Shannon:

–That’s right, Your Honor.

It would… would forbid it.

Byron R. White:

And you say that it’s… it could constitutionally do that.

James M. Shannon:

Yes, Your Honor.

Sandra Day O’Connor:

xxx–

–General Shannon, the statute has been amended in Massachusetts since we took the case, has it not?

James M. Shannon:

It has, Your Honor.

Sandra Day O’Connor:

To add a lasciviousness requirement?

James M. Shannon:

There is a requirement now of lascivious intent which didn’t exist prior to the Supreme Judicial Court’s decision.

Sandra Day O’Connor:

And I gather, would you think that the defendant in this case would have been subject to prosecution and he could be found guilty under the new statute as amended?

James M. Shannon:

I think that the defendant in this case, Your Honor, could have been prosecuted under the nude statute… the new statute because the definition of lascivious intent in that statute includes inappropriate attire and… and suggestive poses.

And I think he could have been–

Right.

James M. Shannon:

–prosecuted.

Sandra Day O’Connor:

Is there any other state that has a statute as broad as the one at issue in this case?

James M. Shannon:

I believe, Your Honor, there are two states that have statutes which would prohibit depicting children in the state of nudity.

Kansas is one, and Ohio is the other.

James M. Shannon:

Although the wordings of the statutes are… are a little bit different from Massachusetts, they specifically speak about nudity, depicting a child in a state of nudity being a prosecutable offense.

Sandra Day O’Connor:

But the Ohio Supreme Court has… has narrowed the interpretation of its statute, has it not?

James M. Shannon:

That is… that is my understanding, Your Honor.

Sandra Day O’Connor:

But you think Kansas is equivalent to Massachusetts?

James M. Shannon:

I do, Your Honor.

Anthony M. Kennedy:

You phrase the issue as to whether not overbreadth invalidates the statute.

Do you concede the statute is overbroad?

James M. Shannon:

Yes, Your Honor, we do concede that there is overbreadth.

As the court below said, read literally, the statute would reach benign family activity.

The one example that they used is the… the activity of a parent depicting a child… photographing a child, a toddler, one-year old toddler romping on the beach without a bathing suit on.

Anthony M. Kennedy:

Well, the statute doesn’t say depicts and it doesn’t say photograph.

It says permits a child to pose or be exhibited.

James M. Shannon:

For purposes of visual representation.

Anthony M. Kennedy:

But that… that’s different than… than permitting the child to be depicted.

James M. Shannon:

Your Honor, the statute does prohibit posing or permitting a child to pose.

There’s no question about that.

And it is our belief that in citing that–

Anthony M. Kennedy:

What if somebody just snaps the little baby in the wading pool?

Is the baby posing.

James M. Shannon:

–Well, the parent might be permitting the baby to pose or be used for visual representation, and that is the basis for the Supreme Judicial Court’s–

Anthony M. Kennedy:

Well, again, it doesn’t say visual representation.

It’s your statute.

If you want to say it’s overbroad, I suppose you can.

But it says to be exhibited.

It’s not… It’s not–

James M. Shannon:

–Well–

Anthony M. Kennedy:

–clear to me that a family snapshot is an exhibit.

James M. Shannon:

–Your Honor, is raising I think a very important question here and that is whether… whether even that which has been suggested by the Supreme Judicial Court as being technically or literally in violation of the statute would be because prosecutors in Massachusetts have certainly never read this statute and the words of this statute as to involve that kind of activity.

Sandra Day O’Connor:

Well, don’t we have to accept the broad interpretation given it by the Massachusetts Supreme Court, and didn’t we say in Ferber that we would accept the interpretation of the state court?

James M. Shannon:

Your honor, what we have here I believe is not the construal of the statute really as much as it is a literal reading of the statute–

Sandra Day O’Connor:

Well, the court read it literally and said it would… it would be violated by taking a picture of a nude toddler.

James M. Shannon:

–I think that what the court did below was exactly what this Court has said it shouldn’t do.

It took one… one conceivable violation, one conceivable infringement on constitutionally protected activity, and constituted that as substantial overbreadth.

Sandra Day O’Connor:

Well, are you asking us to reinterpret the statute, or are you willing to have us accept it as it’s broadly read by the court?

James M. Shannon:

We are asking… we… we believe that this Court should accept the statute as it has been interpreted by the court, but make a determination as to whether the overbreadth that the court below spoke of is substantial and real–

William H. Rehnquist:

General Shannon, you mentioned a moment ago that the picture of the toddler on the beach was benign.

Is… is… are you saying it’s protected by the First Amendment or that it was just not intended to be covered by a sensible statute?

James M. Shannon:

–Your honor, I think that there is a very substantial argument that could be made that none of the conduct that is implicated by this statute is protected by the Constitution.

On the margins, perhaps there are some… some… some entwinement with constitutionally protected activity.

Now, in the case of a benign family photo, it is arguable I suppose that that kind of activity is protected by a right to privacy.

In some other cases, perhaps taking pictures of children in a state of nudity might be protected by some associational rights.

But even conceding that this statute implicates protected conduct, we believe that this… it does not implicate conduct to the degree that what we’re talking about here is anything like real and substantial overbreadth.

William H. Rehnquist:

If you’re talking about some conduct protected by some guarantee of privacy, there wouldn’t be any overbreadth analysis.

James M. Shannon:

That’s correct.

William H. Rehnquist:

Overbreadth analysis comes only with the First Amendment.

James M. Shannon:

That’s correct.

If we were talking about some associational rights, there might be some possible overbreadth analysis.

But even if we were to concede that this implicates the First Amendment on the margin in some way, which we are willing to concede for the purpose of this argument, I feel very comfortable in saying that any overbreadth here is not real and not substantial, that any possible infringements on constitutionally protected activity are best resolved to the case-by-case analysis that was suggested in the Ferber… in the Ferber case.

And that… and that is what our argument is, Your Honor, because the court below did not go further than to think of this one conceivable impermissible application of the statute, the… the child on the beach or the child in the wading pool.

It then jumped to the conclusion that that one conceivable misapplication of the statute constituted real and substantial overbreadth, and we think in so doing–

John Paul Stevens:

General Shannon, have you looked at the brief filed by the Law & Humanities Institute in support of Respondent?

They have all sorts of pictures in there they claim are great works of art and one thing and another.

Do you think any of them are protected by the Constitution?

James M. Shannon:

–I… I do not, Your Honor.

I believe that the Commonwealth of Massachusetts could prohibit constitutionally the taking of those pictures in… in Massachusetts.

And the reason is that the… those pictures, those very sorts of pictures that are contained in that brief, have been shown to do harm to the children who are used as models.

Our legislature made that determination, to be sure, back in 1977 and again when the statute was reenacted in 1982, and tried to deal with it–

John Paul Stevens:

Well, then it’s quite clear that under your view there’s no requirement of any lascivious intent then.

It’s quite clear, isn’t it, because a lot of these pictures… there’s nothing lascivious about them?

James M. Shannon:

–That’s… that’s rights.

James M. Shannon:

There should be no requirement of lascivious intent in my–

John Paul Stevens:

So, it’s your… your position any picture of a… any picture of a nude person under the age of whatever it is is… is totally unprotected unless it’s an infant.

Unless it’s an infant, is that it?

James M. Shannon:

–I would… I would point out to the Court that there is an affirmative defense in the statute that tracks the language of Ferber for… for works of art that are produced for… for a bona fide museum or… or school.

John Paul Stevens:

Well, but you’ve told me none of these would qualify under that.

James M. Shannon:

Well, Your Honor, I… believe that the question of whether the product of the posing ends up being a legitimate work of art is wholly irrelevant to the consideration of whether making that particular photograph or painting did harm to the children who were involved.

And that is the concern that the Commonwealth has in this statutes.

John Paul Stevens:

And you presume that in every such case, there is harm to the child.

James M. Shannon:

That is a presumption, Your Honor, that the legislature has made, and I think… I think that they had a very rational basis for making that presumption because, as we have pointed out in our brief–

What is the rational basis?

James M. Shannon:

–The… the rational basis, Your Honor, is… has I think been substantiated by study after study that shows that the use of children in nude photography does do harm to them, does cause them guilt and shame and fear–

Thurgood Marshall:

Does it show that one picture of one nude child harms that child?

James M. Shannon:

–This is a case–

Thurgood Marshall:

Does that study show that?

James M. Shannon:

–Yes, Your Honor.

Thurgood Marshall:

Where is that study?

Will you tell me please?

James M. Shannon:

Your honor, I… I would refer Your Honor to the Riceman Report which is contained in the briefs of amici and to the numerous–

Thurgood Marshall:

It says that one picture of a nude child injures the child.

James M. Shannon:

–Yes, Your Honor.

I… I think that study after study has shown that taking pictures of children in a state of nudity–

Thurgood Marshall:

I didn’t say what children.

I said a–

James M. Shannon:

–One child, Your Honor.

Thurgood Marshall:

–one picture of a, one, child.

James M. Shannon:

Your Honor, I believe that the… that it’s clear that the reports, the studies, that have been done both before Ferber and since Ferber show that… that posing children in that state does do them… posing a child in that state of nudity does–

Thurgood Marshall:

Well, I want that quote.

Where is that quote?

James M. Shannon:

–I… I can refer Your Honor to the… to the Riceman Report.

Thurgood Marshall:

To the report that says the picture of one child taken one time injures that child.

James M. Shannon:

That any posing of a child in a state of nudity, Your Honor, can and does in many cases do harm to that child, that the child will experience shame, fear of blackmail, guilt, that pedophiles that typically take pictures of children as a way of lowering their inhibitions so that they can use them for their own sexual gratification.

Thurgood Marshall:

This includes a picture taken by a child that the child didn’t know about?

James M. Shannon:

If the child later became aware that a picture had been taken.

One of the cases in–

Thurgood Marshall:

That was not in my hypothetical.

My hypothetical is the child is down on the beach in the nude and he sees nobody else out on the beach and somebody takes a picture, that that injures the child?

James M. Shannon:

–If the child didn’t know that a picture had been taken, I suppose the child would not… would not be injured.

Thurgood Marshall:

Well, so, then your statement is not correct.

The child is not injured automatically.

James M. Shannon:

The child might not be injured automatically, but the child would be injured if that picture were then used for… shown to somebody else or if that picture were then kept by the person who took the picture–

Thurgood Marshall:

Have you ever seen baby pictures of a child… a nude child on a rug, on a bear skin?

James M. Shannon:

–Yes, Your Honor.

Thurgood Marshall:

A lot of them, haven’t you?

James M. Shannon:

Yes, Your Honor, and… and this statute–

Thurgood Marshall:

And those children are all injured?

James M. Shannon:

–This statute is not aimed at that–

Thurgood Marshall:

Those children are all injured?

James M. Shannon:

–They are… they are not injured, Your Honor.

But this… this statute is–

Thurgood Marshall:

But wouldn’t they be covered by this statute?

James M. Shannon:

–As a literal reading of the statute would cover those children, but this statute has never been used for that purpose.

It was never aimed at that purpose.

It was never in the thinking of the legislature, nor has it been in the thinking of any prosecutors that it would be used for that purpose.

When I go around my office in Boston, many, many of my assistants who are well aware of the existence of this statute, have those bear skin rug type pictures of their infants on their desks.

They don’t have any fear that they’re going to be prosecuted, nor does anybody else have any fear that they’re going to be prosecuted because every person, as the court below, would view those pictures as being lawful.

The question here is does the state have the ability to try to get at activity which has been shown and demonstrated in case after case to be harmful to children.

And that’s what this statute is… is all about and that is the way in which it has been used.

The record of enforcement in Massachusetts shows very clearly that… I should point out that in… in making the claim of overbreadth, Respondent has not produced one case where this statute has ever been applied to anything that closely approaches a constitutionally protected activity.

We have produced, however, in our… the appendix to our brief a listing of every prosecution that has been brought under the statute since 1977, 29 prosecutions.

And in 26 of those cases, the charges for violation of this statute were accompanied by charges for either statutory rape or indecent assault and battery–

John Paul Stevens:

Yes, General Shannon, but what that means I suppose is that if you make a charge that’s much more serious than this and you’re not quite sure you can prove that one, you’re sure you can get them on the photograph charge–

James M. Shannon:

–In some cases–

John Paul Stevens:

–So that it’s sort of a nice second weapon to have in those cases.

James M. Shannon:

–That’s right, Your honor.

In some cases that is true.

But I would not minimize the harm that is done to a child, even a child–

John Paul Stevens:

Because if you really have proof beyond a reasonable doubt of all those other offenses, you wouldn’t need this statute at all.

James M. Shannon:

–It is… it is well-known, Your Honor, that proving cases of statutory rape, a rape on a child or sexual abuse on a child, is very difficult because oftentimes, as in this very case–

John Paul Stevens:

And this statute enables you to avoid the problem of proving that kind of crime by proof beyond a reasonable doubt.

James M. Shannon:

–We have to prove beyond a reasonable doubt that a child was posed or photographed in a state of nudity.

And… and even in cases, Your Honor, where there has been some other form of sexual abuse, this is an important charge because it has been shown that this kind of activity does a separate harm to children.

Children are afraid that the existence of these photographs or pictures can later come back to haunt them or to blackmail them, and it causes a continuing harm of depression and shame and guilt and all of the things that are referred to in the briefs.

So, this is a… an important statute standing on its own, and it’s an important statute when it is used along with other charges to prevent the sexual exploitation and abuse of children.

And that is the only purpose for which this statute has… has ever been used.

Sandra Day O’Connor:

Mr. Shannon, do you think that the new statute that directs itself to the posing with lascivious intent is adequate to protect the state’s interests here?

James M. Shannon:

I hope that it is, Your Honor, but I am not sure, to be… to be very honest because it has–

Sandra Day O’Connor:

That certainly seems to be the way most states have gone.

James M. Shannon:

–We… we passed this statute, Your Honor, because of the importance that we placed on having a tool to prevent this kind of activity while this Court was considering this… this very case.

And we certainly hope that it’s going to meet the needs that we have found.

But I would also point out to Your Honor that in the briefs that have been filed on the other side in support of the Respondent’s position, they have raised questions about whether this statute can be subject to the same kind of attack.

And the reason that they have done that and the importance of this Court’s deciding this case is that after the Ferber decision, it was pretty clear to states that they could take action to prevent the production of materials using children as models if those materials showed children engaged in sexual conduct.

But it left hanging the question of what about nudity?

What about other types of activity which has been show to cause harm to children?

Sandra Day O’Connor:

Well, Ferber… the opinion in Ferber said nudity without more is protected expression, did it not?

James M. Shannon:

It did, Your Honor, and I believe where it said that it was referring to the Erzoznick opinion, but it wasn’t talking I don’t believe, Your Honor, about nudity among children.

Just as in Ferber the Court said that sexual conduct that didn’t meet the obscenity standards of the Court could be prohibited by the state, we believe that the Court should now take the next step and deal with this other body of material which has been shown to do harm to children, which the state has, I would suggest, not just a legitimate interest, but a compelling, surpassing interest in… in prohibiting, that we should be sanctioned in our efforts to do just that.

The same rationale of Ferber applies to this… this fact situation.

Anthony M. Kennedy:

If you look at the statute and divide it into two parts, the first part being whoever permits the child to pose or be exhibited in a state of nudity, and then the next part is what the sexual suggestiveness part of the statute, as I understand it… please correct me if I’m wrong… the trial court instructed the jury just on the first part of the statute?

James M. Shannon:

Yes, Your Honor, that is my understanding.

They used the… the… they used the words of the statute… I can’t recall at the moment.

James M. Shannon:

I guess they just did use the first part of the statute.

Anthony M. Kennedy:

So, it’s only the so-called or the allegedly overly broad statute that was the basis for this conviction.

James M. Shannon:

That is right.

There was no evidence introduced at the trial that there had been any sexual… overtly sexual conduct or that the second part of the statute was implicated at all.

These were photographs which were taken… evidence was introduced at the trial that the photographs were taken by the Respondent of his 14-year old stepdaughter topless wearing just a pair of briefs and a red scarf on top of the bar in the family home when they were there alone.

And the words of the statute, the first part of the statute, were used as the charge to… to the jury.

So, I would also point out, though, that the… that the decision of the Supreme Judicial Court, of course, affects the whole statute, including that part which goes exactly at the Ferber… goes at the Ferber situation.

What the Court should do is consider the plainly legitimate sweep of the statute, consider whether there is a… a criminally… constitutionally regulable core of activity here… and I would submit that it is clear that there is… and then determine whether any overbreadth in the statute is real and substantial and so real and substantial as to necessitate the Court’s striking down the whole–

Sandra Day O’Connor:

Is there a severability clause for this statute that’s applicable to it, General Shannon?

James M. Shannon:

–There is, Your Honor.

There’s a severability–

Sandra Day O’Connor:

Why did the Court not refer to the severability clause and sever out any possibly valid portion, do you think?

James M. Shannon:

–Your Honor, the court didn’t answer that question, and it is a baffling question.

The dissents referred to the severability clause and said if there’s a problem, we can sever those constitutionally protected parts of the statute from those which aren’t.

Or the court could have put a limiting construction on… on the statute if it had wanted to do so.

And that is why I believe what the court below did was clearly unnecessarily striking down this statute using the federal Constitution to do it.

Anthony M. Kennedy:

Well, it’s not clear to me that if part A is… is… is void and part B is valid, if you have it before you to save part B when part A was the only thing the jury was instructed on.

James M. Shannon:

I’m… well, I think, Your Honor, the Supreme Judicial Court of Massachusetts–

Anthony M. Kennedy:

I mean, why should they go on to explore part B if part A was the only thing presented to the Jury?

James M. Shannon:

–Their decision clearly affects both part A and part B.

What they did in this… in this decision was they struck down the whole statute, 29A, which include both depicting children… picturing children in the state of nudity and… and picturing children engaged in sexual conduct.

So, they… they struck down the whole statute, including that part which has already I believe been clearly sanctioned by… by Ferber.

And so, the question arises how could they–

Anthony M. Kennedy:

Well, let me… let me put it to you this way.

Assuming that we have it before us… I’m not sure that we do since it’s a state court statute.

Assuming we would somehow say, well, the statute is void in its first part and valid in the second, how does that avail the state here when only the first part was the basis of the charge?

James M. Shannon:

–It doesn’t.

It doesn’t, Your Honor.

And that would leave a whole body of activity that has been shown to harm children which the state would be powerless to prohibit.

And that is… and that is our concern.

James M. Shannon:

And that is the nub of our… of our case.

Antonin Scalia:

General Shannon, suppose we, on the overbreadth problems, simply said, well, the… the only reason we have this overbreadth rule is in order to prevent legitimate First Amendment activity from being stifled and deterred.

But now that the Massachusetts legislature, the Supreme Court of Massachusetts, the supreme legislative court, has modified the statute, there’s no real problem about that anymore.

There’s… there’s no inhibitory effect of this statute anymore, so we shouldn’t consider overbreadth.

Could we decide the case that way, and if we did, would that… would that satisfy you?

James M. Shannon:

Your honor, I… I believe that the statute… that the case should be decided on… on overbreadth grounds because there are so many questions as to how what our highest state court did below affects the new statute and how it might affect other statutes.

Antonin Scalia:

But even if it was overbroad, it is certainly not inhibiting anybody anymore because the Massachusetts legislature has amended it.

So, why can’t we say… you know, just send it back and say if this conviction is a valid conviction, it can stand?

James M. Shannon:

Well, the–

Antonin Scalia:

Because there’s no overbreadth problem anymore even if there… you know, even if there–

James M. Shannon:

–Well, the court… Your Honor is absolutely correct in suggesting that this statute can no longer inhibit speech, and… and so, the Court could do that.

But I think that the question still remains–

Antonin Scalia:

–You’d be stuck with a new statute though.

James M. Shannon:

–We have a new statute, and we… we are stuck with it.

We don’t know how well it’s going to… how well it’s going to work.

I would point out to the Court we have other prosecutions that we’re concerned about which might have to be prosecuted under the old statute, and we have a core of activity that took place prior to the enactment of the new statute which we can’t do anything about right now.

I’ve already had inquiries from district attorney’s offices about… about taking a picture, similar situations to the one in this case, that took place prior to the enactment of the new statute, and they’re asking me what can… what can we do.

And the answer is right now I’m not sure what we can… what we can do.

So, those I think are also good reasons why the Court should decide this case.

But the principal reason is that the court below I think clearly made error when it struck down the whole statute as being substantially overbroad and because this is a question I think of surpassing interests not only to Massachusetts but to other states as well.

William H. Rehnquist:

You… you think it erred in striking down part 1.

You… you would not be willing to see the judgment stand striking down part 1, but leaving part 2.

James M. Shannon:

No, I would not, Your Honor.

I think part… the first part of the statute, the part dealing with nudity is very… is a very important tool, a necessary tool if we are to adequately protect children.

This, as this Court well knows, is an issue that the states have been trying to deal with with some difficulty now for the last decade or more.

I don’t think we’ve heard the final word of it from legislatures.

And I certainly do hope that the new statute is going to be effective in preventing the activity that we’re trying to reach here.

But as I suggested, it has already been suggested to us that it’s going to be challenged on the same overbreadth… overbreadth grounds, and I think that the state has such a compelling interest in this area that we should be given some latitude in how… in trying to reach this activity which has been so clearly and convincingly shown to cause grave and serious and lasting harm to children.

I can think of no obligation of the state more important than the state’s obligation to take action to prevent the children who live in the state from harm.

Section 29A is an important part of our efforts in Massachusetts to do that.

James M. Shannon:

And I would ask the Court to reverse the decision of the Supreme Judicial… Judicial Court.

If the Court has no further questions now, I’d like to reserve the balance of my time for rebuttal.

William H. Rehnquist:

Thank you, General Shannon.

Mr. Vita, we’ll hear now from you.

Richard J. Vita:

Thank you, Mr. Chief Justice, and may it please the Court:

It appears at least in argument that my brother has conceded several points that appear to have been in contention in the briefing by the Attorney General’s Office.

But we can accept his position with regard to the fact that the Massachusetts statute in question in this case is overbroad and… and also that the activity in taking the photograph involves First Amendment rights.

And starting then from… from that point, I move to the issue of whether or not facial overbreadth in that analysis is appropriate in this case.

And the standard, however strict, that the court has noted that its application is strong medicine and that it should be used with great caution–

Sandra Day O’Connor:

Well, what’s the purpose of the overbreadth?

Is it to avoid chilling legitimate First Amendment conduct by others?

Richard J. Vita:

–Yes.

Sandra Day O’Connor:

Is that the purpose of it?

Richard J. Vita:

I believe that that is one of the central purposes–

Sandra Day O’Connor:

Well, if that statute isn’t on the books anymore, as Justice Scalia has suggested, why should we hold it… hold anything invalid under overbreadth analysis?

That statute is gone.

How could it inhibit anybody now?

Richard J. Vita:

–The original statute–

Sandra Day O’Connor:

Yes.

Richard J. Vita:

–under which Mr. Oakes–

That’s what’s before us.

Richard J. Vita:

–Were this Court to determine that the new statute with the lascivious intent requirement is an appropriate area of regulation–

Sandra Day O’Connor:

We don’t have the new one in front of us.

We only have the old one, and it doesn’t exist anymore.

It has been replaced.

Richard J. Vita:

–Well, obviously, most respectfully, were the Court to uphold the decision of the Massachusetts Supreme Court striking down the statute on reasons of overbreadth, then the… the chilling effect upon the citizens of the Commonwealth would not exist because there would be… the remainder would be the clear statement of the–

Sandra Day O’Connor:

Well, I guess that isn’t my question.

The Massachusetts court found it overly broad and struck it.

We’re reviewing that decision.

In the meantime, the legislature has replaced the statute, has it not?

Richard J. Vita:

–Yes, it has.

Sandra Day O’Connor:

So, I’m asking what is there of the original statute to which an overbreadth analysis would now apply?

Richard J. Vita:

Well, it would seem that during the… the pendency of this appeal to the Court, that citizens might be in a quandary with respect to whether or not activities that they would choose to engage in are nonetheless going to be the subject of a potential prosecution.

I think the chilling effect during the pendency–

Antonin Scalia:

I assume you can only prosecute under the new statute.

The Commonwealth hasn’t said you can prosecute under the new or the old, have they?

I mean, isn’t the old statute gone now?

Richard J. Vita:

–Yes, it would be unless this Court reversed.

Antonin Scalia:

So, there’s no… no inhibitory effect then and there’s no possible harm to be done by overbreadth of the old statute.

It’s gone.

Richard J. Vita:

Well, I submit–

Antonin Scalia:

If your client could… could properly have been convicted under a narrowly drawn statute, he was properly convicted.

And if… if others were wrongfully deterred by that old statute, it doesn’t matter because that statute is not there anymore.

Richard J. Vita:

–Well, I would submit that the… the–

Antonin Scalia:

Everybody wins except your client.

All… all your amici will abandon you, and it’s just your client that suffers from the old statute.

Is that right, Mr. Vita?

Isn’t it true that if we reverse, the old statute would come back to life and people who were committing these acts before the new statute was passed would be subject to prosecution.

The Attorney General said there are a number of pending cases they don’t know what to do about.

Richard J. Vita:

–That’s–

Antonin Scalia:

And they would be prosecuted if we reverse.

That’s why he wants us to reverse it.

Richard J. Vita:

–That is correct.

And I… I also think–

Anthony M. Kennedy:

In other words, the legislative action that was taken was not a repealer of this statute.

It was just the enactment of a new one, and this statute remained on the books subject to being stricken by the Supreme Judicial Court?

Richard J. Vita:

–I believe that it was a repealer of the statute.

Anthony M. Kennedy:

Well, then it can’t come back no matter what we say and no matter what the Supreme Judicial Court says.

It’s gone.

Richard J. Vita:

That is correct.

Richard J. Vita:

And I think then the issue would relate to the new statute as to whether or not lascivious intent on the part of the person that would take a photograph is–

Byron R. White:

That would have to be in some other case.

Richard J. Vita:

–That’s correct, Your Honor.

William H. Rehnquist:

Do you–

–But now, under the old statute, is it your position that the acts actually engaged in by your… your client are protected by the First Amendment?

Richard J. Vita:

Yes, Your Honor.

William H. Rehnquist:

And what case of ours do you think supports that?

Richard J. Vita:

Well, Your Honor, I would point to… point to the Ferber decision in which this Court… this Court stated on page 774,

“nor will we assume that the New York courts will widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on lewd exhibition of the genitals. “

The term “lewd exhibition of the genitals” was part of a definition of sexual conduct under the New York statute, and it would appear from that language that the Court was… was not willing to make an assumption that… that the State of New York would widen the definition of sexual conduct to go beyond the lewd exhibition of the genitals.

Byron R. White:

But if… if… if the… if the… if overbreadth goes out of the case because the old statute has been repealed and it can no longer itself be a deterrent to any… anybody who wants to engage in First Amendment activities, the issue then becomes whether the conduct that your client that the Chief Justice asked about is protected or not.

And… and the state court never reached that issue.

Your… your client was… was convicted and his conviction was reversed because the statute under which he was convicted was held invalid on its face.

And the court didn’t reach the issue of whether this particular conduct was protected.

Richard J. Vita:

It is–

Byron R. White:

And we wouldn’t have to decide that.

We can go back and we can… we could remand that, I suppose.

Richard J. Vita:

–Well, the issue was raised before the Supreme Judicial Court not on a claim under the state constitution whether or not this statute which prohibits the posing or depiction in a state of nudity or semi-nudity.

The issue that was addressed by the court was what… a federal constitutional question under the First Amendment.

Sandra Day O’Connor:

Counsel, would you concede that lascivious depictions of child nudity can be prohibited by the state?

Richard J. Vita:

I would not, and I… essentially the–

Sandra Day O’Connor:

And why not?

Richard J. Vita:

–The… the aims that have been stated for the banning of this type of activity have been directed towards conduct that will likely result in injury or harm to the child.

One can–

Sandra Day O’Connor:

Well, there’s not much doubt, is there, that photographs of the type taken here of a post-pubertal child in this condition could be very harmful to that child?

Do you dispute that?

Richard J. Vita:

–Well, I do dispute that, but if I could just finish the answer to the lascivious intent.

Upon analysis, it would matter little to the child in question whether or not the person who had taken the photograph… the intent of the person in doing so… if… if there was to be injury to the child and whether or not that would occur in a given case is certainly not answered by a provision which requires that the photographer have this so-called lascivious intent.

So–

William H. Rehnquist:

But our whole law of homicide… the injury is the same in each case.

William H. Rehnquist:

There’s a death of a human being.

But the punishment for it depends greatly on what the state of mind of the charged defendant was.

Richard J. Vita:

–The… the Petitioner in this case, I submit, in its brief and in its argument has failed to articulate a convincing, empirical, scientific or psychological demonstration that proves the rational basis that nudity or semi-nudity does, in fact, result in… in serious harm to the child.

Most of the… virtually all of the authorities in the arguments presented deal with the issue of pornographic materials.

Anthony M. Kennedy:

Well, I take it they don’t have to prove that, or do they, under the law?

If it’s a rational judgment to be made by the state, that suffices.

Richard J. Vita:

Well, I… I submit that the–

Anthony M. Kennedy:

I mean, they don’t have to prove it one way or the other.

If there’s evidence on which they might act and it might come to that conclusion, even though we may disagree, that’s the end of it.

Richard J. Vita:

–Most respectfully, Your Honor, I… I believe that the Court is entitled to determine whether or not the aims targeted by the statute are fairly restricted by the type of conduct that is prohibited under the statute.

In this particular case–

Anthony M. Kennedy:

Well, but we were starting out case by case, and you say that even a photograph taken with a lascivious intent is protected.

So, you don’t even get beyond that point.

Richard J. Vita:

–That is correct.

I… I believe that… that the decisions of this Court that have on several occasions held that nudity without more may not be properly limited, that… that those decisions of the Court carve out an area of protected activity, and that it’s only, the Respondent argues, where sexual conduct, as that has been defined in the legislature in accordance with the decisions and pronouncements set down by this Court, may be properly limited.

Antonin Scalia:

Mr…. Mr. Vita, may I ask?

Assuming as… as everybody seems to assume, that there’s a constitutional right to take a picture of your baby on a bear skin rug, which… which I’m not sure of, but let’s assume that that’s so, why is your claim of overbreadth a First Amendment claim of overbreadth as opposed to a claim of overbreadth on… based on some other constitutional ground?

Specifically, you would acknowledge, would you not, that the state could make it unlawful and criminal to take a picture of an individual naked without that individual’s knowledge or consent, for somebody to sneak in and use a telephoto lens taking a picture of you or me taking a shower?

Can a state make that unlawful?

You’re not sure about that?

Richard J. Vita:

I cannot–

Antonin Scalia:

I certainly hope it can.

You mean the First Amendment requires that people should be able to go around taking photographs of other people in the nude without their knowledge or consent.

It doesn’t require that, does it?

Richard J. Vita:

–Well, I… I don’t… I cannot say that there’s any statute that has been enacted that would fall within the example that you have cited.

But I would think–

Antonin Scalia:

I’m sure there are a lot of civil prohibitions which would likewise fall under the First Amendment bar if… if the First Amendment prevented it.

Certainly it would be an invasion of privacy, wouldn’t you… wouldn’t it?

You’re not sure about that?

Richard J. Vita:

–Well, it might depend on the circumstance.

Richard J. Vita:

I can think of examples where… where it… it might clearly fall within protected activity.

I can perhaps mention to the Court at some–

Antonin Scalia:

Well, let’s assume I don’t… I was… I thought that was an easy question.

My second question, which was… I… I also thought was easy, could the state make it unlawful for someone to take a picture of a minor without the minor’s… in the nude without the minor’s parents’ consent?

And again, that seems to me like a pretty easy question.

Even if you want to take a picture of your own baby in the nude on a bear skin rug, it doesn’t seem to me that other people ought to be able to do that if you don’t want it done.

Now, if all of that is true, then, it seems to me, we have established the principle that the First Amendment does not absolutely mean that people can take pictures of other people in the nude without their consent.

And all we’re talking about is whether the government can prevent parents from giving that consent.

Now, that be a constitutional prohibition.

Maybe the government can’t.

Maybe the government can’t prevent parents from giving their consent, but if that’s a problem, it’s not a First Amendment problem.

It’s a problem to what extent the government can intrude into the parent-child relationship.

It has nothing to do with the First Amendment.

And therefore, the overbreadth problem wouldn’t exist unless, of course, you disagree in your answer to the other two questions which I… I gather you do and were wise to do.

Richard J. Vita:

–Well, I… I submit that the analysis that we have argued that the… the process of photography involves expression.

In some cases it’s more marginal than in others, but nonetheless–

Antonin Scalia:

Yes, but your expression stops at my body.

And If I don’t want particularly want you to take a picture of me in the nude, I don’t have to, do I?

Richard J. Vita:

–No, that’s correct.

Antonin Scalia:

I don’t think you’re talking about the First Amendment with the bear skin rug examples.

I think you’re talking about some ability of parents to… to… to control their relationship with their child.

But that’s not the First Amendment anymore.

Richard J. Vita:

Well, there are many other examples of the type of conduct that would be restricted and this statute would prohibit beyond the… the one that was so plainly cited by the Massachusetts Supreme Court, beyond the toddler who is romping nude on the beach.

There could be pictures taken for the purpose of… of demonstration or discussion in a forum precisely on the subject of whether or not given photographs fall within the area of child exploitation or child pornography.

There also could be a potential claim involving artists, painters or sculptors whose works frequently do not become involved in museum or libraries until sometimes after their death–

Antonin Scalia:

Do you think–

Richard J. Vita:

–far after the time of the taking of the photograph.

William H. Rehnquist:

–Do you think if I’m… if I’m a painter, I could, contrary to state law, induce the minor daughter of the people next door to come over and pose for me and say that’s… even though the state law forbids it and say that’s the First Amendment?

Richard J. Vita:

Well, think that when the issue is framed in terms of manipulation, coercion–

William H. Rehnquist:

Well, I’m not talking about… I’m talking about–

Richard J. Vita:

–and those types of activities, were a statute to be properly limited and the type of nudity were… were described in a manner that would… would satisfy the Court’s concern about areas that… that would be clearly protected–

William H. Rehnquist:

–Well, supposing Massachusetts enacted a statute saying that no one shall induce a minor child without the consent of the parents to pose in various nude things, just like Massachusetts has said, does the First Amendment protect that?

Richard J. Vita:

–In that particular case, it… it… it may not protect it depending on the… the type… the type of… of portrayal.

William H. Rehnquist:

Well–

Richard J. Vita:

The content of the photograph.

William H. Rehnquist:

–Well, why should it make any difference at all how the photograph turns out if the evil at which the state is aiming is the posing of a minor child in that way without the consent of the parents?

Whether it’s an impressionist, a representation or abstract will make no differences to the injury.

Richard J. Vita:

Well, in some given circumstances, there may be some minor children who, without the consent of their parents, that would have permitted themselves to be photographed that may not result in injury.

It may depend on… on–

William H. Rehnquist:

You say the state can’t generalize from the… the material it has, that it would have to show some sort of injury in every case?

Richard J. Vita:

–Well, I believe that if the… the state would have to show that the banning of mere nudity alone by the very act of permitting someone to pose in nudity is, in fact, harmful to the child.

Can we say that those, however in the minority they might be, that choose the nudist lifestyle… can we say that in all circumstances that… that a photograph of such a child who enjoys the… the… and chooses in a family way the benefit of… of that type of… of expression… can we say and be sure that it’s harmful to the child?

Antonin Scalia:

No, and I suppose I can’t say categorically that every young woman below the age of… of… of legal consent who… who is statutorily raped is harmed either.

I can’t say that, but I can make a generalization and make it a crime to have intercourse with a young woman below a certain age even though I can’t… I can’t absolutely swear that every… every young woman below that age who… who gives her consent doesn’t know what she’s doing and is therefore being harmed.

But I can make it a crime anyway, can’t I, on the basis of general assumptions?

Richard J. Vita:

Well, you… you… you could make that analogy to a statutory rape type of case.

But I submit that this area of protecting the subject matter of nudity has long been safeguarded by this Court.

And even though it’s a… an issue that generally is one that is unpopular, is perhaps not exercised by a great many Americans, it nonetheless will still require this… this Court to be careful not to infringe upon the rights of… of those who may legitimately have their conduct chilled or be encompassed within such a draconian statute.

I point out to the Court for purposes of the issue of whether it’s substantial that the statute is punishable by not less than ten nor more than 20 years or fines or both.

This Court in Ferber has… has indicated that the–

Thurgood Marshall:

But, counsel, do you admit that there is a psychological damage to these children who are photographed in the nude?

Richard J. Vita:

–I do not admit that in… in–

Thurgood Marshall:

Well, what do you say in contrast to what they say–

Richard J. Vita:

–Well–

Thurgood Marshall:

–In the opinions and briefs and all of the lot?

Richard J. Vita:

–The photographs that… and the studies that have been cited and the reports referred to almost exclusively deal with the subject matter of using child models in pornographic pictures.

And this Court has… has stated in Ferber that it would require at least a lewd exhibition of the genitals by way of one example of what is pornographic.

There are also references in their reports with regard to harm that deal with the Miller test or obscenity issues.

However, this Court, I submit, cannot feel comfortable in banning a… an area of expression that is much a part of our culture and has been over the years clearly protected.

Thurgood Marshall:

What’s the difference between taking the picture of a child frolicking in the sand in the nude and being taken upstairs, downstairs and put on a bar and told to take her clothes off?

Richard J. Vita:

I do see a difference.

Thurgood Marshall:

You do see a difference, don’t you?

Richard J. Vita:

And I can… I can… I believe that a statute can be drawn that could meet the legitimate aims of the state to avoid the… the issue of child exploitation in the example that you’re talking about where–

Thurgood Marshall:

xxx.

Richard J. Vita:

–the language of the statute–

Thurgood Marshall:

Isn’t that this case?

Richard J. Vita:

–Well, as… as–

Thurgood Marshall:

xxx.

Richard J. Vita:

–applied to this case, if the… if the statute–

Thurgood Marshall:

Do you think the statute applies in this case?

Richard J. Vita:

–I believe that the statute as applied in… in this particular case under Ferber is… is unconstitutional and that is because the… the… the conduct that is depicted in the photographs in this case involve the exposure of a… of a young woman’s breasts and that there–

Antonin Scalia:

So, if this 15-year old had said to her stepfather, daddy, I don’t want to do this, and he said don’t worry.

It’s… you’ve got to do it because this is not going to be a lascivious photograph.

And she says I… I just really don’t… I don’t want to.

There’s nothing the state can do to protect that child?

Richard J. Vita:

–Not Mr.–

Antonin Scalia:

I find that–

Richard J. Vita:

–Justice Scalia, it… my point is… is that a statute could be carefully crafted that would be limited to circumstances where the child is coerced, is… is otherwise compelled to submit against her will, poses that are in a sexually exploitive portrayal, that the Court would define is–

Antonin Scalia:

–If they’re sexually exploitive.

Richard J. Vita:

–within the legitimate sweep of–

Antonin Scalia:

Only if they’re sexually exploitive, otherwise the child must submit to the… to the parent’s desire to take the photographs.

Richard J. Vita:

–In the example that you have cited where the… the child is… is saying no and is being compelled by the parent, of course, that’s not an issue in the facts of our case.

Anthony M. Kennedy:

What… what about the facts in this case?

Could the legislature by a properly, narrowly drawn statute punish the conduct that occurred in this case?

Richard J. Vita:

xxx.

Anthony M. Kennedy:

The jury has before it just the evidence it has here, nothing more.

Richard J. Vita:

In–

Anthony M. Kennedy:

Can this–

Richard J. Vita:

–With a different statute carefully drawn?

Anthony M. Kennedy:

–Punish the conduct in this case.

Richard J. Vita:

I believe if there was a carefully drawn statute, that it could.

Anthony M. Kennedy:

That must… that must be because there are other elements than pure speech involved.

Richard J. Vita:

No, I believe that… most respectfully, that this Court could define a core of conduct in which it could delineate sexually explicit actions by the… the young woman which would take it out of the area of… of protected speech.

It could define that the nudity in the statute–

May I interrupt?

Richard J. Vita:

–must be of a type that it would create the kind of harm that the purpose of the child pornography statute–

John Paul Stevens:

May I ask you again?

I’m not… there seems to me some tension between your answer to Justice Kennedy and part 2 of your brief.

Are you taking the position that the conduct in this case is not constitutionally protected?

Richard J. Vita:

–No, I’m not, Your Honor.

John Paul Stevens:

So, no matter what the statute said, you–

Richard J. Vita:

I thought the question was–

John Paul Stevens:

–You say no matter how narrowly drawn the statute is you still would win according to your argument.

Richard J. Vita:

–Yes, Your Honor.

John Paul Stevens:

Well, that’s not what I understood you–

Richard J. Vita:

I took it as a hypothetical question, could any statute be fashioned that could proscribe the kind of activity.

John Paul Stevens:

–This activity, and your answer to that is no, isn’t it?

Richard J. Vita:

That’s correct, Your Honor.

John Paul Stevens:

Yes, that’s what I thought.

So… so then this conduct could not be punished?

Richard J. Vita:

That’s correct, Your Honor.

John Paul Stevens:

xxx that.

What if… I mean you can volunteer it?

Richard J. Vita:

Well, Your Honor, there’s no… there’s no authority, a court decision of this Court or other authorities that… that would squarely address the issue.

And I might say that this particular statute is virtually unique among… among states.

I might point out that–

Thurgood Marshall:

You mean the state cannot prohibit a father from taking his child downstairs in the basement, telling her to get up on a bar, take her clothes off and put a shawl around her?

And the state can’t prohibit that?

Richard J. Vita:

–Well, in this particular case, Your Honor–

Thurgood Marshall:

No.

Thurgood Marshall:

I said can a state prohibit that action?

Richard J. Vita:

–No, Your Honor.

Thurgood Marshall:

With properly drawn statutes?

Richard J. Vita:

Yes, Your Honor.

Thurgood Marshall:

Yes… yes, what?

Richard J. Vita:

Yes, it cannot be… it cannot be… a state cannot proscribe that type of conduct.

Thurgood Marshall:

There’s no… you can’t draw a statute on that?

Richard J. Vita:

Yes, Your Honor.

Antonin Scalia:

And your… your answer is the same, if I understand you correctly, if it weren’t the father.

If it were… if it were a stranger who… who induced the young woman to do that so long as he didn’t twist her arm, of course, the state could not prohibit that either.

Richard J. Vita:

Well, I think that once you’re getting beyond the parents, it would depend upon whether or not there was–

Antonin Scalia:

What does the parents or not have to do with the First Amendment?

That’s a different issue.

Richard J. Vita:

–Well–

Antonin Scalia:

If that’s… if that’s the claim of overbreadth, it’s not overbreadth that we take cognizance of.

Richard J. Vita:

–Much of the Petitioner’s argument is directed towards instances where the child has been manipulated, coerced, forced or compelled to submit to the… to the degrading photographs.

I submit that in the absence of any evidence that would show that that is occurring within the ambit of the statute is… is protected.

For all of those reasons, the Respondent asks the Court to affirm the decision of the Massachusetts Supreme Court.

William H. Rehnquist:

Thank you, Mr. Vita.

General Shannon, you have three minutes remaining.

James M. Shannon:

Your Honor, unless the Court has further questions, I have nothing further to add.

John Paul Stevens:

Very well.

The case is–

–I have one.

May I ask just one?

Would you clarify, General, just exactly what is the status of the new statute?

Did it repeal the earlier statute, amend it?

Exactly what is it?

James M. Shannon:

It… the old statute can be used, Your Honor, to prosecute those activities which took place prior to the enactment date of the… of the… of the new statute.

John Paul Stevens:

So that if we were to reverse, as you ask us to, that would revive some prosecutions or potential–

James M. Shannon:

Yes, Yes, Your Honor.

William H. Rehnquist:

–Thank you.

Whatever prosecutions are… are pending, all the acts have taken place I take it.

James M. Shannon:

Any… any acts that would be prosecuted under the old statute have already… have already taken place.

Byron R. White:

And it doesn’t seem to me like the old statute would be any basis whatsoever for a finding of overbreadth.

It’s not about… as Justice Scalia has said, it’s just not about to deter anybody else.

It’s gone.

So, I don’t know why the… these cases that are pending shouldn’t turn on the specific conduct that’s at issue.

James M. Shannon:

The… the old statute, of course, Your Honor, did not have a lascivious intent requirement which–

Byron R. White:

I… I know that, but it’s gone.

James M. Shannon:

–Except for purposes of prosecution.

Byron R. White:

Yes, but the reason for overbreadth is–

James M. Shannon:

Yes.

Byron R. White:

–the state has to get rid of its… its price for having the statute unnarrowed is you can’t prosecuted anybody.

But once it’s narrowed, you can prosecute anyone you want.

James M. Shannon:

The old statute will have no chilling effect on future conduct.

That is correct, Your Honor.

Antonin Scalia:

Was the old statute repealed?

James M. Shannon:

It was… it was reenacted.

I think… my… my understanding of it is there is a new statute on the books which supplants the old statute.

The old statute applies only to… only to activity that took place prior to the effective date of the new statute.

So, the new statute will not… not be used without further… the old statute will not be used without further action by the legislature to revive it, Your Honor.

Thank you.

William H. Rehnquist:

Thank you, General Shannon.

The case is submitted.